Wednesday, October 24, 2012

See an amicus brief (pdf) and press release from the national ACLU and the Electronic Frontier Foundation about yet another cell-phone tracking device used by law enforcement that any new, restrictive Texas legislation filed next year should try to account for: "Stingray" phone surveillance. Here's a description of the new technology from ComputerWorld's Darlene Storm:

Let’s say you have your cell phone with you, even if you are not talking
or texting, otherwise minding your own business, innocent of being
suspected of any crime . . . but hey your privacy can be invaded as if
you have no Fourth Amendment rights at all. A portable device known as
an IMSI catcher, also known by the generic term stingray,
acts like a fake cell tower and tricks your mobile device into
connecting to it even if you are not on a call. It is used for real time
location tracking; some can pinpoint you within two meters as well as
eavesdrop and capture the contents of your communications.
There’s been a stink about them for a little more than a year, but
three big privacy and civil liberty groups, the ACLU, EPIC and the EFF
have all warned that the secretive devices threaten your rights and that
the invasive technology is unconstitutional.

The ACLU/EFF amicus was filed, wrote Storm, in a case out of Arizona, but it turns out a federal magistrate judge in Texas has been recently been plowing the same earth. "Judge Brian Owsley in Texas pushed back against the warrantless use of stingrays, not once but twice, the Wall Street Journal reported." Indeed, the Wall Street Journal has been all over the Stingray story, which (to my knowledge) they broke about a year ago documenting its warrantless use by the FBI. That earlier WSJ story mentioned that the same manufacturer, "holds trademarks registered between 2002 and 2008 on several
devices, including the StingRay, StingRay II, AmberJack, KingFish,
TriggerFish and LoggerHead." That piqued my interest because the Fort Worth PD not long ago purchased a KingFish system. (Who knows whether other Texas agencies have purchased similar systems or not?)

Anyway, bully for Judge Owsley! Here's a link to his most recent order, and an earlier opinion on the same subject. This week's Wall Street Journal story on his cell-site orders opened, "A judge in Texas is raising questions about whether investigators are
giving courts enough details on technological tools that let them get
data on all the cellphones in an area, including those of innocent
people." The Journal story concluded:

In the Texas cases, Judge Owsley held hearings to determine what
devices were being used. Ultimately, he wrote that stingrays and cell
tower dumps did not fall within the categories of tools that Congress
has said can be used without a warrant.

According to Judge Owsley’s order, the U.S. attorney in the stingray
case said the application was based on a standard model approved by the
Department of Justice and indicated he would give the judge more
examples of law supporting the application. But that memo, Judge Owsley
writes, was never provided to the court.

In the end, wrote Judge Owsley, "cell-site data are protected pursuant to the Fourth Amendment from warrantless searches. Thus, the Government could obtain the cell site data only by establishing probable cause pursuant to Rule 41 of the Federal Rules of Criminal Procedure." Orin Kerr said Owsley's opinion "relies primarily on Magistrate Judge Smith’s decision now on appeal
before the Fifth Circuit that held that cell-site data is protected
under the Fourth Amendment and compelling it therefore requires a
warrant."

Two lessons arise for any privacy legislation going forward next spring at the Texas Lege tht may address these issues: 1) the language must be flexible enough to account for rapidly changing technology, and 2) it should echo Judge Owsley's decision to require a warrant, as opposed to a lesser court order based on reasonable suspicion. That latter, weaker standard is what the government would prefer in the federal cases (see the ACLU/EFF amicus for more detail) and what, as I understand it, Texas law requires now for traditional GPS tracking. Technology is outpacing statutory Fourth Amendment protections at a dizzying clip, and nowhere is that more true than with regards to cell/smart phone data.

These cases, either way, are the beginning of a long discussion that will inevitably end up in SCOTUS' lap. Personally, I'd like to see the legislative branch for once, both state and federal, try to get ahead of the curve rather than wait for judges to write the law after the technology has been in use for years.

3 comments:

I am a big supported of our rights, and even though this type of thing could mean letting criminals go free, the important thing is to get the case put together legally. This is the only way to keep from things like this from happening. There are many instances where law enforcement tries to get away with doing things the easy way and even if the conviction goes through at first, years later it can be challenged and overturned. This is why cases need to be strong.

Dear Grits, what is the basis for your belief, noted in the story, that Texas law now requires even reasonable suspicion for law enforcement to get GPS tracking from a cell phone provider? if there is any law requiring this, I am unaware of it. Thanks, Brad Lollar, Dallas

I am all for helping catch criminals using technology, but it should be properly discussed and looked into first before implementing it. Also, make sure that it does not violate privacy laws of ordinary citizens.

GfB Writer Bios

Subscribe by email

Support Grits via Donation

Donate to Grits via PayPal. Grits is a hobby, but donations help cover newspaper subscriptions, periodic travel, open records fees, etc.. Donate if you can! When I have resources, the blog can do more stuff!

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Conroe

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"

- Rob Patterson, The Austin Post"Scott Henson's 'Grits for Breakfast' is one of the most insightful blogs on criminal justice issues in Texas."

- Texas Public Policy Foundation

"Nobody does it better or works harder getting it right"

David Jennings, aka "Big Jolly"

"I appreciate the fact that you obviously try to see both sides of an issue, regardless of which side you end up supporting."

Kim Vickers,Texas Commission on Law Enforcement Officer Standards and EducationGrits for Breakfast "has probably broken more criminal justice stories than any TX reporter, but stays under the radar. Fascinating guy."

Maurice Chammah,The Marshall Project"unrestrained and uneducated"

John Bradley,Former Williamson County District Attorney, now former Attorney General of Palau

"our favorite blog"

- Texas District and County Attorneys Association Twitter feed"Scott Henson ... writes his terrific blog Grits for Breakfast from an outhouse in Texas."